I should like, first of all, to deal with the amendment put down by Senator Douglas. A perusal of the Restrictive Trade Practices Act, 1953 shows that the amendment is not in accordance with the terms or intention of the Act. Both Houses of the Oireachtas debated the Restrictive Trade Practices Bill, 1952 at considerable length and there was abundant opportunity for the amendment of the Bill which was, in fact, amended in several respects before it became law. The Bill, as passed by both Houses of the Oireachtas and signed by the President, is the legislative instrument from which all the activities of the Fair Trade Commission flow and the instrument which confers upon me the power to make an Order such as I have made in regard to the radio trade.
I cannot go outside the terms of the Restrictive Trade Practices Act, 1953. That Act did not place any obligation on the Fair Trade Commission to have verbatim reports of evidence or to submit any such transcripts to me. All the Act did was to require the commission to furnish me with a report of the inquiry. They have done that and I have no power to ask them to go further and furnish me with, as the Senator has suggested, a complete transcript of the evidence presented to them. Not only did the Act limit the obligations of the commission to the presentation of a report, but it actually provided that they could regulate their own procedure. I understand that it has been the practice of the commission to have verbatim notes taken for their own assistance. But that is a matter of procedure within the competence of the commission itself and I have no power to demand that they should make any such transcript of the evidence available to me.
Apart from not having the power, I have no desire, in any event, to seek such a transcript. It was laid down by the Oireachtas in the Act that the sittings of the commission must be held in public, except where special private sittings are necessary to safeguard the legitimate business interests of any person. The inquiry into the radio trade was held in public. The whole object of having an inquiry in public is to let the public know what is happening. Any person was at liberty to attend the public sittings. It seems to me that it would have been highly illogical, in any event, to prescribe that the hearings must be in public, but that, notwithstanding this, a transcript of the evidence must be furnished.
If the Oireachtas had any intention —which was certainly not expressed— that a transcript of the evidence should be afforded to either of the Houses, there would have been no necessity to direct that the inquiries must be held in public. The commission could have been left to hold all their inquiries in private, giving due notice and affording an opportunity to all interested parties to give evidence and the Oireachtas could have prescribed that the transcript of such hearings should be furnished to me and laid before the Houses of the Oireachtas. That was not done, however, and it is, of course, obvious that it was not done for the very good reason that only one purpose would be served by making transcripts available to the Oireachtas, namely, to enable the Oireachtas to conduct its own detailed investigation into matters already examined and reported on by the commission.
When the Restrictive Trade Practices Act, 1953, was before the Oireachtas, it was clearly understood that those Orders should stand as a whole, and that the Oireachtas would have the right to accept or reject, but not to amend them. It was understood also that there would be no question of the Oireachtas covering again the ground already covered in detail by the commission. The necessity for a special investigatory body to inquire into restrictive trade practices was clearly recognised. It was accepted that a detailed investigation into such practices could not effectively be undertaken by the Oireachtas, and that the sensible approach was to set up a statutory commission for the purpose, to give to the commission special powers of examination, to rely on the commission to submit fair and impartial reports of their findings, and to provide that the Oireachtas should have power to review the findings, but not the investigative processes, of the commission. It seems to me that Senator Douglas's amendment cuts right across the principles underlying the Restrictive Trade Practices Act, 1953.
I think that, on reflection, members of the Seanad would agree that no useful purpose could, in any event, be served by any Senator or any Deputy seeking to go through a transcript of the evidence and form conclusions. The Senator's motion ignores the fact that the oral evidence comprised in a transcript is only one part of the evidence, of which the commission took account. It is clear to anyone who has read the commission's report or, indeed, who followed the public hearings, that minute books and documents of all kinds formed another and a very important part of the evidence. It is on the basis of the evidence as a whole that the commission drew up the statement of facts set forth in their report.
The Seanad will be aware that proceedings have been initiated in the High Court concerning the report of the commission and the Order which I have made. I am not prepared to enter on any line of argument which might seem to prejudge or prejudice the attitude the commission would take in their defence to this action. It must be obvious, however, to the Seanad that the members of the commission, being completely impartial and responsible persons, must be assumed to have given the weight to the evidence that it merited and I do not think it would be proper to embark on a separate evaluation of the evidence. My function under the Act is to consider the report which was made to me.
I have done that and I may say that I had no difficulty, having read the report and considered the conclusions, in making up my mind to accept the commission's recommendations and to make the Order which I made and which is now before the Seanad for confirmation in this Bill. There was, of course, no question of my accepting these recommendations automatically. I examined the report in detail and I considered each recommendation very carefully. I could have rejected the commission's recommendations in whole or in part. But my examination and consideration convinced me that the commission were fully justified in their recommendations and that I should make an Order on the lines suggested by the commission.
With regard to the Bill itself, it may facilitate Senators if I give a résumé of the commission's report and of the recommendations which the commission make with a view to terminating restrictive trade practices which are considered to be unfair or to operate against the public interest. Senators will understand that in referring to trade practices, I am referring to the position as it was stated in the commission's report and that I have no means of knowing to what extent, if any, practice has been altered in the meantime. According to the commission's report the retail trade in radio sets is regulated by agreement between two trade associations—the Federation of Irish Radio Manufacturers and the Wireless Dealers' Association. More than 90 per cent. of the radio sets marketed are handled by manufacturers and distributors who are members of either of these two associations. Entry to the retail trade is controlled by the Wireless Dealers' Association by means of the maintenance of a list of approved retailers to whom the manufacturers of radio sets agree to confine distribution. It is virtually impossible for a trader whose name is not on the approved list to engage regularly and openly in the sale of radio sets. Application for admission to the list of approved dealers must be made to the Wireless Dealers' Association. Certain conditions as to premises and the stocking and display of radio sets must be complied with by an applicant and, in addition, an applicant must maintain a repair department in his premises, and, if he is not technically qualified himself, he must employ at least one service mechanic on a whole-time basis. An applicant must undertake not to supply radio sets for resale to any person whose name is not on the list of approved retailers and he must undertake also not to sell radio sets at prices lower than the retail prices specified in the manufacturer's list of prices. These requirements are enforced vigorously by the association. Breaches of the requirements may result in fines or suspension or deletion of the retailer's name from the approved list.
Assessing the actual and potential effects of the approved list system, the Fair Trade Commission have expressed the view that the system prevents or restricts competition and restrains trade. They consider that such interference with competition and trade is unfair and operates against the public interest. The commission point out that the system places in the hands of an association composed largely of radio traders the power to determine whether these traders should allow other traders to enter into the radio business. The commission indicate also that the existing arrangements provide a means of organising boycotts of manufacturers whose discount rates or list of customers are not acceptable to the Wireless Dealers' Association; that private enterprise in distribution is stultified and, as a result, the public is deprived of the benefits of healthy competition. The commission have also adverted to the fact that the emphasis in the operation of the approved list of retailers is in favour of retailers resident in the larger towns and cities and that the restriction of business opportunities to the larger centres of population is not in accordance with public policy.
The view has been widely expressed that if the approved list system is abolished, everyone would be entitled to engage in the sale of radio sets. The commission do not, however, accept the contention that the only alternative to the approved list system is widespread and uneconomic proliferation of retail outlets. They take the view that it is for individual manufacturers to determine the economics of distribution so far as the number of outlets, is concerned and they point out that, in the absence of collective restrictions, competition between manufacturers may be expected to serve as a deterrent to distributional arrangements which are irrational and uneconomic from a manufacturer's point of view. The commission consider that, in the case of any individual manufacturer, the objective of achieving efficiency and economy in distribution justifies the making of conditions by that manufacturer, if he so wishes, as to the volume and frequency of orders, or as to the provision of service to the public provided such conditions are reasonable and are not designed or likely to restrain trade or limit competition unfairly. It is the considered view of the commission that individual manufacturers, acting in this way, can ensure the avoidance of an undue proliferation of outlets while at the same time preserving fair and equitable methods of distribution.
The retail prices of radio sets to the public are fixed by the manufacturers, and sets are sold to the retailer at the retail price less a discount of 33? per cent. giving the retailer a gross profit of 50 per cent. on the cost price. This rate of profit is substantial, and it will be observed from the commission's report that, even though retailers might be satisfied to accept a lower rate of profit, they are obliged to adhere strictly to the retail prices fixed by the manufacturers. The practical result of this arrangement is the establishment and enforcement of minimum selling prices in respect of all radio sets sold in the Irish market. In normal conditions enforcement of a fixed retail margin results in prices being higher than they would be in the absence of a fixed margin.
The purchase of a radio set involves the purchaser in a relatively substantial outlay, and the retailer's profit margin represents a large portion of that outlay. An arrangement which deprives the public of the benefit of competition in respect of one-third of the retail price of a radio set is clearly a matter which affects the public interest in a very direct way. The commission have expressed the view that resale price maintenance, to which all approved radio retailers are required to adhere, is a practice which is contrary to the public interest. The commission see no valid reason why retailers, wherever located and whatever their operating expenses and efficiency, should be compelled, regardless of their own wishes, to accept a margin of gross profit as high as 50 per cent. on the cost of radio sets. The commission are of opinion that it is contrary to the public interest that retailers should be put out of business if they choose to operate on the basis of a profit margin which, though less than the prescribed margin, is sufficiently remunerative in their own particular circumstances. The view of the commission is that resale price maintenance, whether enforced by an association or by an individual manufacturer, should be abolished, and they consider that the abolition of this practice in the radio trade would be to the advantage of the consumer, would lead to increased efficiency in retailing and would not detract from efficiency in production.
The argument most commonly advanced against the abolition of resale price maintenance is that such a step would lead to extreme price competition, with consequent instability in the trade. Radio sets would, it is feared, he used as loss leaders, that is to say, offered for sale at drastically reduced prices in order to induce customers to purchase other commodities, the price of which has not been reduced. A large concern, dealing in a wide range of goods, would be in a stronger position than a small retailer to make up for a reduction in the prices of radio sets by increased sales of other goods, and the consequence of this would be the large-scale elimination of the small retailer. Persons without any real interest in the trade, and without any intention of continuing in the business, might seek a quick profit by reducing prices in order to increase turnover and so disrupt the business of legitimate traders.
The commission consider that it is necessary to distinguish between price cutting in circumstances where resale prices are fixed, though ineffectively or only partially mantained, and a situation where price competition is accepted as a normal condition of trading. The commission take the view that, in the latter circumstances, the opportunities for unscrupulous traders will be very limited, and regular retailers will be in a position to weigh the long-term consequences of a particular price policy in relation to other forms of competition. The commission do not accept the contention that price competition would lead to the elimination of numbers of small retailers. On the contrary, the commission consider that such competition would tend in some measure to favour the small retailer by providing him with a means of countering the attractions in the way of elaborate facilities offered by larger concerns.
As regards the practice of loss leader selling, the commission's view is that, having regard to the substantial cost, radio sets are much less likely to be used as loss leaders than are other commodities which are low-priced and have a high rate of turnover. In any case, the loss leader device derives much of its sustenance from the prescription of fixed prices. The fact that a very high proportion of radio sets is sold under hire-purchase arrangements further reduces the possibility of extreme price cutting. In such cases the customer is concerned with the size of the monthly instalment, which is governed by the duration of payments and the specific terms of hire purchase, as well as by the price of the radio set. The impact of price competition is much less direct in such circumstances than in the case of cash sales.
It is unreasonable, in the view of the commission, that the consumer should have to forgo the benefits of price competition in order that retailers might be protected against the contingency that competition might at some time become excessive. It is preferable to try to meet the risk of the emergence of such competition, not by eliminating all price competition, but by devising a method of checking excessive competition should it appear. The commission consider therefore that in two sets of circumstances the general prohibition against enforcement of resale price maintenance should be modified. Firstly, if a retailer offers or sells a particular brand of radio set at a price less than or equal to the price at which he originally purchased it from the manufacturer, unfair trading might legitimately be alleged, and the supplier should not be prevented from withholding further supplies. Secondly, if the goods are offered or sold at a price so little exceeding the purchase price as materially to injure the legitimate business interests of a supplier, the supplier should be at liberty to withhold further supplies, provided that he informs the commission of his intention. If, in the latter case, the commission, having examined the matter, notify the supplier that, in their opinion, the circumstances do not justify the continued withholding of supplies, the supplier would be obliged to continue to supply the trader in question.
I have given careful thought to the recommendations of the Fair Trade Commission, and my view is that the commission are fully justified in making the recommendations which are contained in their report. I agree entirely with these recommendations, and I am satisfied that it is unfair that radio manufacturers who have the benefit of tariff protection should discriminate against dealers by refusing to supply them on the grounds that the dealers are not approved by a particular trade association. I am of opinion, also, that it is wrong that it should be within the competence of vested retail interests to restrict the right of new retailers to enter into the radio trade.
I consider also that a number of the conditions imposed by the Wireless Dealers' Association on new entrants to the retail trade are unduly onerous. I refer, in particular, to the obligation that a new dealer must maintain a repair department and, if he is not technically qualified himself, must employ at least one service mechanic on a whole-time basis. This obligation, which, it may be noted, does not apply to firms which, prior to 1946, were on the approved list maintained by the Wireless Dealers' Association, bears with severity on the retailer in rural areas where the volume of repair work would not be sufficient to justify the employment of a service mechanic on a whole-time basis. I am satisfied that it is contrary to the interests of the consumer that competition should be restricted both by the maintenance of a list of approved retailers and by the enforcement of minimum resale prices for radios.
With the object of removing the abuses which exist and restoring conditions of free and fair competition in the radio trade, the commission recommend in their report that an Order should be made prohibiting the particular practices which are considered to be harmful to the public interest. The commission recommend, for instance, that, subject to the adoption of safeguards against the contingency of excessive price competition, resale price maintenance should be prohibited and that it should be made possible for retailers to determine their own selling prices in the light of their own operating costs. Dealing with the withholding of radio sets from retailers who have not complied with the rules of the Wireless Dealers' Association, the commission recommend that it should be made unlawful for a manufacturer or wholesaler to discontinue supplies of radios to a retailer on the grounds that the retailer has not observed minimum resale prices.
As regards restraint of trade which arises from the exclusion from supplies of retailers whose names are not on an approved list, the commission recommend that it should be made unlawful for a manufacturer to withhold radio sets from a retailer on the grounds that the retailer is or is not a member of a particular organisation or association or because the retailer's name does not appear on an approved list. The commission recommend that no manufacturer, trade association or organisation should be permitted to publish lists of approved or non-approved persons which are likely to restrict entry to the retail trade or to be used as a basis for regulating the supply and distribution of radio sets. The commission recommend also that it should be made unlawful for any person to secure a boycott of any manufacturer of radio sets on the grounds that the manufacturer has refused to do any act which would be contrary to the terms of the Order.
There are, finally, two recommendations by the commission regarding the imposition by individual manufacturers of terms and conditions for the acceptance of orders. Firstly, it is recommended that a manufacturer should be permitted to impose certain conditions including conditions as to the volume and frequency of orders et cetera, provided such conditions are reasonable, are equitably applied, and are notified to the commission, which may, if the circumstances at any time so require, make fair trading rules in relation thereto. Secondly, it is recommended that there should be a prohibition against a manufacturer differentiating between customers who should, in the normal way, be supplied on the same terms and conditions, having regard to the size and frequency of their orders. The commission do not consider that a manufacturer should be prevented from advertising or specifying a resale price which is a maximum price or from withholding supplies from a retailer if the maximum price is exceeded. Any such specified or recommended price will not, however, be binding on retailers as a minimum price.
I have made an Order to give effect to the recommendations contained in the report of the Fair Trade Commission, and a copy of the Order has been circulated to Senators. Section 9 (3) of the Restrictive Trade Practices Act, 1953, provides that an Order of this kind shall not have effect unless it is confirmed by an Act of the Oireachtas. The Bill which I am sponsoring is the Confirmation Bill which is necessary to give the force of law to the Order. Senators are probably aware that proceedings have been initiated in the High Court seeking, inter alia, a declaration that the Restrictive Trade Practices Act, 1953, the inquiry held by the Fair Trade Commission in regard to the supply and distribution of radio sets, and the Restrictive Trade Practices (Radios) Order, 1955, are unconstitutional. The hearing of the action has not yet commenced and I do not wish to say anything that might be regarded as prejudging the hearing, but I consider that, having regard to all the circumstances, it would be proper that the Oireachtas should proceed with its consideration of the Bill for the confirmation of the Order.
I commend to the House this Bill which, on enactment, will, I hope, put an end to unfair restrictive practices in the radio trade.